Voluntary Assisted Dying Laws (VAD) (Qld)

In September 2021, Queensland became the fifth state to legalise Voluntary Assisted Dying (VAD). The Voluntary Assisted Dying Act 2021, to take effect in January 2023, will allow adults who are expected to die within 12 months to seek medical help to end their lives, as long as they meet strict eligibility criteria. VAD laws also exist in Victoria, Western Australia, Tasmania and South Australia.

Principles

The Act states a person exercising a power of performing a function related to VAD must consider principles such as:

• every person has inherent dignity and should be treated equally and with compassion and respect;
• a person’s autonomy in making end-of-life choices should be respected;
• a person approaching the end of life should be provided with high-quality care and treatment to minimise their suffering and maximise their quality of life;
• access to VAD and other end of life choices should be available regardless of where a person lives in Queensland;
• a person should be supported in making informed decisions about end of life choices.

A medical practitioner or nurse practitioner can initiate a discussion about VAD with a patient as long as they also inform the person at that time about treatment options and palliative care options, and the likely outcomes of those. Other health workers are prohibited from discussing VAD with a patient.

Eligibility

To be eligible for VAD, the person must:

• be aged at least 18;
• an Australian citizen or permanent resident or has lived in Australia for 3 years immediately before requesting access to VAD;
• have lived in Queensland for at least 12 months;
• have a disease, illness or medical condition that
  • is advanced, progressive and will cause death; and
  • is expected to cause death within 12 months
  • is causing suffering that the person considers to be intolerable;
• have decision-making capacity in relation to VAD;
• be acting voluntarily and without coercion.

“Suffering” caused by a disease, illness or medical condition includes physical or mental suffering, and suffering caused by treatment of the disease, illness or medical condition.

A person is not eligible for VAD because they have a disability or a mental illness.

Assessment

A person can make a request to a registered medical practitioner for VAD. The request must be clear and unambiguous, and made personally. It must be formally recorded by the practitioner. If the practitioner accepts the request, they become the person’s co-ordinating medical practitioner.

A first assessment is then made by the co-ordinating practitioner, who decides whether the person is eligible. The practitioner must have completed approved training. They can refer the patient to a specialist if they cannot determine whether the patient has the requisite disease, illness or medical condition, or whether the patient has decision-making capacity, or whether the person is acting voluntarily and without coercion.

If the co-ordinating practitioner is satisfied the person is eligible, they must inform the person about matters including the patient’s diagnosis and prognosis; the potential risks of receiving a VAD substance for the purposes of death; and that the patient can discontinue the VAD process at any time. The outcome of this first assessment must be formally recorded.

The co-ordinating medical practitioner must then refer the person for a consulting assessment. The consulting medical practitioner must be satisfied that the person is eligible for VAD and understands the information about VAD given to them. The outcome of this consulting assessment must be formally recorded.

A person can then make a second request for VAD to the co-ordinating practitioner. The request must be signed by 2 witnesses and formally recorded by the co-ordinating practitioner. If the practitioner confirms the person is still eligible, other requirements under the Act must then be followed, including the making of a final request and a final review. There must be at least 9 days between the first request and the final request.

Practitioner objection

A registered health practitioner who has a conscientious objection to VAD has the right to refuse to:

• provide information about VAD;
• take part in a VAD request and assessment process;
• take part in a VAD administration decision;
• prescribe, supply or administer a VAD substance;
• be present when a VAD substance is administered.

Administration

The person can decide whether they will self-administer the VAD substance or have a medical practitioner administer it to them. If a person chooses to self-administer the substance, they can choose the time and place for this, and who can be present. If a practitioner administers the substance, this must be done in the presence of a witness, who must attest that the person appeared to be acting voluntary and without coercion, and that the substance was administered by the practitioner in the witness’s presence.

For the purposes of state law, a person who dies in accordance with VAD laws, does not die by suicide.

Safeguards

The Act contains a variety of safeguards, including:

• a person must make at least 3 separate requests for VAD;
• a person who acts as a co-ordinating practitioner must have held general medical registration for at least 5 years, or specialist registration for at least 1 year;
• a co-ordinating practitioner or consulting practitioner must not be a family member of the person, or a beneficiary under their will or otherwise benefit financially;
• the requirement for a contact person when a person chooses self-administration. The contact person must receive the VAD substance from an authorised supplier, supply it to the patient, then give any unused substance to an authorised disposer;
• strict laws for the prescription of a VAD substance, including that the prescription must state it is for a VAD substance and that the VAD request and assessment process has been completed; and that the prescription must be given directly to an authorised supplier;
• a Voluntary Assisted Dying Review Board, which ensures compliance with VAD laws.

Further, a person can apply for a review of a VAD decision to the Queensland Civil and Administrative Tribunal.

Offences

The Act also contains offences relating to VAD which act as safeguards. For instance, if a person, by dishonesty or coercion, induces another person to access VAD, they face a maximum penalty of 7 years imprisonment. The same maximum penalty applies if a person, by dishonesty or by coercion,  induces another person to self-administer a VAD substance.

For advice or representation in any legal matter, please contact Armstrong Legal.